Was the employee disabled?

Posted on February 19, 2016

In Mr R Banaszczyk v Booker Limited [2015] UKEAT/0132/15/RN the Employment Appeal Tribunal (EAT) has overturned the employment tribunal’s decision that a Warehouse Operative did not meet the tests under the Equality Act 2010 and was therefore not disabled at the relevant time.

Mr Banaszczyk was employed as a picker by Booker Limited, a company operating a chain of wholesale warehouses. He commenced employment on 18 February 2008. As a picker, he was required to lift and move cases weighing up to 25 kilograms by hand for loading onto pallet trucks. In agreement with the recognised trade union, the employer agreed a ‘pick rate’ of 210 cases per hour. Employees were required to meet the minimum acceptable standard of 85% the ‘pick rate’.

Following a car accident on 10 February 2010 Mr Banaszczyk suffered a spinal injury. This resulted in a period of low back pain from December 2009 to early 2010. At that time he was not complying with manual handling guidelines. He was prescribed strong painkillers for two weeks and it was anticipated that if he complied with the guidelines he would be able to continue his normal duties.

Further back pain resulted in one month’s sickness absence in December 2011. He told his employer that he did not always use proper lifting techniques. He requested lighter duties on his return to work due to the pain he experienced when picking heavy items. He continued with his normal duties.

He was referred by his employer to an occupational physician following further sickness absence in September 2012. Mr Banaszczyk explained that he could meet the employer’s ‘pick rate’ when lifting smaller items but he wasn’t able to reach target when lifting heavy items. He could achieve 85% of the ‘pick rate’ at least 50% of the time, however the remainder of his time he reached between 70% and 80%.

Following a further meeting with the occupational physician on 15 February 2013, the occupational physician confirmed that it was more likely than not that he would require further absences in the future and there was no realistic prospect that his ‘pick rate’ would increase. He was later dismissed in July 2013 on grounds of his incapability. Mr Banaszczyk bought claims for unfair dismissal and disability discrimination. The employer disputed that he was disabled at the relevant time.

The employment tribunal was required, at a preliminary hearing, to determine whether he was disabled. The relevant period in question was 1 August 2011 to 5 July 2013. The tribunal took into account an impact statement submitted by Mr Banaszczyk together with his GP and the occupational physician’s notes and correspondence as evidence of his disability. The tribunal considered that his evidence regarding his ability to carry out day to day activities outside of work was exaggerated but accepted the evidence of his medical professionals. The evidence confirmed that he was learning to drive, he had been able to fly to Poland in September 2012 and he was able to go shopping with his partner, remove items from the shelves, put shopping in the car and take lighter items into the house. The employment tribunal held that Mr Banaszczyk did have a long-term physical impairment, but that his impairment did not have a substantial effect on his day-to-day activities. He was not a disabled person within the meaning of the EqA.

The tribunal relied on an old case of Condappa v Newham Health Care Trust [2001] EAT/452/00, in which the tribunal found that a midwife was not disabled as her back injury did not have a substantial effect on her ability to carry out day-to-day activities. It also relied on the HM Government, Office for Disability Issues, Equality Act 2010 Guidance. This Guidance sets out illustrative examples of what a tribunal should consider when assessing disability, although it is non-statutory guidance. The Appendix sets out an illustrative and non-exhaustive list of factors which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. The list includes “Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or small piece of luggage with one hand”. However, the Appendix also cites an “Inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley” as not being reasonable to regard as having a substantial adverse effect on normal day to day activities.

The tribunal touched upon the European dimension and cited the case of Paterson v Commisssioner of Police and the Metropolis [2007] ICR 1522, an EAT case which stated “that normal day-to-day activities must be interpreted as including activities relevant to professional life”. There was no consideration of the cases of Chaćon Navas v Eurest Colectividades SA [2006] IRLR 706 or Ring v Dansk Almenyttigt Bolingselkab [2013] IRLR 571 in which the European Court of Justice laid down the definition of disability. The EAT found that Mr Banaszczyk‘s impairment undoubtedly hindered his participation in working life. It referred to the definition of disability in Ring, which provided that a disability is “a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

The tribunal had failed to address its reasons why Mr Banaszczyk did not meet the tests under the Equality Act 2010. Mr Banaszczyk appealed.

The EAT found that the employment tribunal had not rejected the medical evidence regarding the impact of his impairment on his work but it had failed to address the questions of whether his impairment had a substantial adverse effect on his ability to carry out normal day to day activities. The EAT did not remit the matter back to the tribunal to determine as it was within the EAT’s power to make such as finding where there was only one possible outcome and it did not require a full re-consideration of the facts.

The ‘pick rate’ required by the employer was not the activity in question, it was the speed at which he was required to work and the manner in which he was required to work. The act of lifting and moving goods was a normal day-to-day activity which occurred in many workplaces, particularly in other warehouses and it required no special skill. As a result of Mr Banaszczyk‘s impairment he was significantly slower than others and slower than he had been or would be if he didn’t have the impairment. There was a substantial adverse effect which resulted in him being unable to participate fully in working life. His appeal was allowed. The EAT made a declaration that he was disabled for the purposes of the Equality Act 2010 at the relevant time.

This case is a good demonstration of the tests to be met relating to disability and the European dimension which should be taken into account when determining disability. If you think you might meet these tests or you are unsure if your employee might meet the tests, we can help.

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